INTERPRETATION OF WILL.

Otago Daily Times, Issue 20990, 1 April 1930, Page 3

INTERPRETATION OF WILL.

ESTATE OF JOHN THOMAS WRIGHT. SUPREME COURT JUDGMENT. Following is the judgment of Mr Justice Kennedy in . the case of the Trustees Executors and Agency Company of New Zealand, Ltd., v. Francis Reynolds Wright and others, heard on February 12 last: — The testator, John Thomas Wright, devised and bequeathed his real and personal property to trustees to sell and con vert the same into money and, after directing the payment of debts atu legacies and the appropriation of sums to meet annuities and, for the education of a grandson, he provided in his will that certain named sums should be held upon trust for certain daughters, and that the sum of £OOOO should be held upon trust in equal shares for the children of his late son John Wright, namely, for the grandson, John Buekland Wright, on his attaining the age of 25 years, and for such 'of his granddaughters as attained the age of 21 years or married under that age. His will then continued as follows: “ S. Provided, nevertheless, and I declare that the share in the trust premises which I have hereinbefore given to each daughter of mine shall not vest absolutely in such daughter, but shall be retained and invested by my trustees and held by my trustees upon the following trusts, namely, the income thereof shall be paid to such daughter during her life without power of anticipation or alienation, and from and after her death in trust rfor all the children or tiny the child of such daughter win being male shall attain the age of 21 years, or being female shall attain that age or marry under that age, and if more than one equally as tenants in common, 0. I declare that the share in the trust premises to which each daughter of the said John Wright shall become entitled shall be held by my trustees upon tlje trusts and subject to the provisions in favour of her and her children corresponding with the trusts and provisions herinbofore contained in favour of my said daughters and their children.” The first question arising is as to the destination of the corpus of Phyllis Mary Wright’s share in the sum of £9OOO should she die without leaving any child or children who attained a vested -interest therein. Phyllis Mary Wright, who is a daughter of • the testator’s son, -John Wright, has attained the age of 21 years. She is in the first place given her share absolutely, and later there is the declaration that her share does not vest absolutely, but is held subject to the trusts declared. This conclusion, that the will does in the first place confer an absolute interest, is supported by In re Hamilton Gilmer (deceased), 1922, N.Z.L.R. 411, and In re Marshall Graham v. Marshal], 1928, 1 Ch. 661, where the provision of the wills considered were, so far as material, almost identical with • John Thomas Wright’s prill. In In re Payne Taylor v. Payne 1927 2 Ch. 1 let burp J. held that, where the language used was " to appropriate one of such shares to each of my sons now living" coupled with a declaration that the shares were not to vest absolutely, there was at no stage an absolute gift. The language, however, as- Eve J. pointed out in In re Marshall deceased (supra) was different from the language of the will considered in that case. The trusts declared do not exhaust the whole interest They make no provision for the contingency of Phyllis Mary Wright dying without leaving a child or children who attained a vested interest, and consequently, in accordance with the principle sometimes called the rule in Laaaenco v. Tierney, 1 Mac, and G. 551, and recognised by the House of Lords in Hancock and Others v. Watson and Others, 1902, A.C.14, and frequently applied in New Zealand —see in re Hamilton Gilmer (deceased), 1922, N.Z.L.R. 411, and in re Antrobus, Henderson, and Others v. Shaw and Another, 1925, N.Z.L.R. 364—Phyllis Mary Wright’s share in the £9OOO will form part of her transmissible estate. The rule is laid down by Lord Davey in Hancock v. Watson (supra) as follows: —“ In ray opinion it is settled law that if you find an absolute, gift to a legatee in the first instance, and trusts are engrafted or imposed on that absolute interest which fail, either from lapse or invalidity or any other reason, then the absolute gift takes effect so far as, the trusts have failed to the exclusion of the residuary legatee or next of kin ns the case may be. Of course, as Lord Cottenham pointed out in Lassence v, •Tierney, if the terms of the gift are ambiguous, you may seek assistance in construing it—in saying whether it is expressed as an absolute gift or not — from the other parts of the will, including the language of the engrafted trusts. But when the court has once determined that the first gift is in terms absolute, then if it is a share of residue (as in the present case) the next of kin are excluded in any event. In the present case I cannot feel any doubt that the original gift of two-fifths of the residuary estate to Susan Drake was in terms an absolute gift to her. The testator uses the words ‘ I give,’ and speaks of the shares subsequently as ‘ allotted ’ to her. Mr Levett contended that there are words in the will which confine her interest in the allotted portions to her life. But tligt is not what the testator has said: lie has directed that during her life she shall have only the income of her share for her separate use without power of anticipation. But that is quite consistent with a power to dispose of the capital after her death so far as it should not be exhausted by the trusts declared of it and with the right of her representatives to claim it. In other words, as between herself and the estate, there is a complete severance and disposition of her share so as exclude an intestacy, though as between her and the parties taking under the engrafted trusts she takes for life only.” The principle applies where the property is devised and bequeathed in trust as well as where property is devised and bequeathed directly: In re Harrison, Hunter v. Bush, 2 Ch. 59, and in re Hamilton Gilmer (deceased), • 1022, N.Z.L.R. 411. There follow clauses S and 9 of the will, which are set out above, provisions for the destination in certain events of the share of each named daughter and of each daughter of the testator’s sou John Wright in the specific sums, and thereafter occurs clause 15, upon the true construction of which the remaining questions turn. Clause 15 provides as follows :—” As to the residue of my said trust fund I direct my trustees to hold one-seventh part thereof in trust for my son Francis Reynolds Wright, one-seventh part thereof in trust for ray sou Walter Cecil Wright, one-seventh part thereof in trust for my son Philip Lowrey Wright, onc-scventh part thereof in trust for my daughter Marian Frances Gertrude Buckland, one-seventh part thereof in trust for my daughter Mary Isabel Guthrie, and oue-seveuth part thereof iu trust for my daughter Edith Lilian Marguerite Wright, and the remaining one-seventh part in trust for such of the children of my late sou John Wright as shall be living at the time the youngest of such children shall attain the age of 21 years, such children if more than one taking in equal shares, and I direct that the shares in the residue of my said trust fund of each of my said daughters and each of the daughters of my late son John Wright shall be held by my trustees upon the trusts aud subject to the provisions in favour of her and her children corresponding with the trusts and provisions herinbefore contained in favour of my said daughters aud granddaughters.” The second question is as to the destination of Phyllis Mary Wright’s one-third share iu onc-sovcnth of the residue should she die without leaving <iny child or children who shall attain a vested interest •herein. Edith Lilian, Marguerite Wright

and Marian Prances Gertrude Buckland have each diod without issue, and a similar question arises in each case as to the destination of the corpus of a oneseventh share in the residue. Each such share in the residue is, according to clause 15, to be held upon the_ trusts and provisions "corresponding" with certain trusts and provisions thereinbefore contained. The trusts and provisions to apply to the share of each named residuary legatee are the trusts and provisions in favour of her and her children which applied to her share in the specific sum already by the will bequeathed to her. The words, " upon the trusts and subject to the provisions iu favour of_ her and her children," sufficiently indicate that the share will be held upon trust to pay the income for life to the child or grandchild named, with a gift of the corpus thereafter to such of her children, as, being male, attain 21. or, being female, attain that age or marry under that age. There is no provision in the will thereinbefore contained which provides for the destination of the share of Phyllis Mary Wright in the £OOOO should she die without leaving a child or children who shall attain a vested interest therein and consequently, as the gift of residue is absolute in the first place, her share therein will on death form, in the circumstances set out in the second question, part of her transmissable estate. It appears in clause 15 that trusts and provisions in favour of a daughter and her children are later described as trusts and provisions in favour of the daughter and as if a provision giving income to a daughter for life with corpus thereafter to children, did not in the testator's view alter the character of the provision ana prevent such a provision being a provision in favour of the daughter. The "third and fourth questions expressly raise the question whether clause 15 applies liot only clauses 8 # and 9 but also the provisions thereinbefore contained providing for the destination of the share of the named daughters should they die without leaving children : who attained a vested interest. If either Mary Isabel Guthrie or Edith Lilian Marguerite Wright die without leaving a child or children who attain a vested interest in the named sums, her respective share is to be held in trust for her next of kin as if she had died a spinster and intestate and as if such share had formed part of her estate: see clause 10. If no child of the said Marian Frances Gertrude Buckland lives to attain a vested interest in the said sum of £BOOO, after her death the share in the sum of £BOOO bequeathed to her is to be held in trust in equal shares for such of the children of Francis Reynolds Wright and Philip Lowrey Wright living at the testators death who attain the age of 21 years, or, being female, attain that age or marry I under that age. The words "in favour of her and her children " and in favour of my said daughters and grand-daugh-ters ** indicate, it was submitted, all those trusts and, provisions which deal with the destination of the share which was in the first place given absolutely to the daughter, including those provisions for remainder over in case there were no children of the daughter who attaint a vested interest. In the proper sense of the words a provision of a will is "in favour of" a person if it confers bounty upon him, and those words do not aptly describe a provision that others shall, in certain events, take a share in the first place given to the named person. Such a provision is in favour of someone else. Earlier in the will the testator, in clause 9, had used similar words, and in that clause it is clear that the provisions "in favour of ' a daughter and her children describe provisions conferring bounty upon a daughter and her children. The testator lias not used the words " concerning " or " with respect to " the share bequeathed or some such like colourless words, nor has he used the words " with .the like remainder over in default of certain issue," or such like words. I do not think that, as submitted, the words "in favour of" can be treated as destitute of the implication of bounty, and as sufficiently colourless to apply provisions usually applied by the inclusion of such words as " with the like remainder over." I have not overlooked the provisions of clause 25 of the will, hut I do not think that the reference to the share in the residuary trust fund of the children of the testator's sons Francis Reynolds Wright and Philip Lowrey Wright is sufficient to indicate that the words "trusts and provisions in favour of her and her children " are really equivalent to the words " trusts and provisions concerning the share in the first place given absolutely to her." The answer to each question will accordingly be: "It forms part of her transmissible estate." The costs of all parties, taxed as between solicitor and client, will be paid out of the residue of the estate.